[Federal Register Volume 64, Number 113 (Monday, June 14, 1999)]
[Notices]
[Pages 31871-31874]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15080]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
Endangered and Threatened Wildlife and Plants; Notice of Intent
To Clarify the Role of Habitat in Endangered Species Conservation
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice.
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SUMMARY: We (the U.S. Fish and Wildlife Service) announce our intent to
develop policy or guidance and/or to revise regulations, if necessary,
to clarify the role of habitat in endangered species conservation.
Identification of the habitat needs of listed species and the
conservation of such habitat is the key to recovering endangered and
threatened species. We will examine all the tools available to identify
and conserve the habitat of listed and threatened species including
critical habitat determinations (prudency and determinability) and
designations under section 4 of the Endangered Species Act of 1973, as
amended (Act). We intend to streamline the processes involved in
completing critical habitat determinations and designations. Our goal
is to achieve the greatest conservation benefit in the most cost
effective manner for imperilled species. We solicit public comments,
and we will incorporate comments into the new proposed guidance as
appropriate.
DATES: We will accept comments on this guidance until August 13, 1999.
ADDRESSES: Address comments regarding this guidance to the Chief,
Division of Endangered Species, U.S. Fish and Wildlife Service, 1849 C
Street, N.W., Mailstop ARLSQ-420, Washington, D.C. 20240.
FOR FURTHER INFORMATION CONTACT: Chief, Division of Endangered Species,
U.S. Fish and Wildlife Service, 703-358-2171 (see ADDRESSES section).
SUPPLEMENTARY INFORMATION:
Background
Importance of Habitat for Species Conservation
The process of habitat protection through the designation of
critical habitat is properly examined in the broad context of the
importance of habitat in endangered and threatened species
conservation. Virtually every study of the conservation of imperilled
species considers habitat as a major component in a species'
conservation and eventual recovery. The very purpose of the Act is ``to
provide a means whereby the ecosystems upon which endangered species
depend may be conserved.'' The National Research Council recognized the
importance of habitat in its 1995 book, Science and the Endangered
Species Act: ``habitat protection is a prerequisite for conservation of
biological diversity and protection of endangered and threatened
species.'' The National Research Council further noted: ``the
Endangered Species Act, in emphasizing habitat, reflects the current
scientific understanding of the crucial role that habitat plays for
species' (National Research Council 1995).
Habitat considerations are a key part of virtually every process
called for in the Act. We describe the habitat needs of species, and
threats to habitat, in detail in all listing rules. In fact, Factor A
of the ``Summary of Factors Affecting the Species'' section of all
proposed and final listing rules discusses ``The Present or Threatened
Destruction, Modification, or Curtailment of the Habitat or Range'' of
the species. For most species, the threats to habitat are the most
important consideration when determining if a species qualifies for
protection under the Act. Habitat considerations are prominent in all
recovery plans, and recovery plans include maps and descriptions of the
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habitat needed to recover the species. The section 7 consultation
process addresses the dynamic and seasonal characteristics of the
habitat needs of listed species. New information concerning species'
habitat use becomes available throughout the listing, consultation,
habitat conservation planning, and recovery processes. It is essential
that we consider current and complete habitat information in these
processes. The analysis of habitat alteration and/or destruction is the
cornerstone of the Act's section 7 consultation process and the section
10 habitat conservation planning process; this is true for species that
have designated critical habitat, as well as for those species that do
not. Habitat is identified, communicated to affected parties,
protected, and conserved through all phases of applying the Act's
protections. The conservation and recovery of imperilled species is
dependent upon habitat protection and restoration. When species are
listed as threatened or endangered, the habitats or ecosystems upon
which they depend are recognized. Conservation and recovery actions are
directed not only to the imperilled species, but to the species'
habitat, as well.
Role of Critical Habitat in the Act
Critical habitat is defined in the Act as--(i) the specific areas
within the geographical area currently occupied by a species, at the
time it is listed in accordance with section 4 of the Act, on which are
found those physical or biological features (I) essential to the
conservation of the species, and (II) which may require special
management considerations or protection, and (ii) specific areas
outside the geographical area occupied by a species at the time it is
listed upon a determination by the Secretary that such areas are
essential for the conservation of the species. Critical habitat, if
prudent and determinable, must be proposed and designated by regulation
and thus codified in the Code of Federal Regulations (CFR).
A designation of critical habitat is not prudent under the current
regulations when one or both of the following situations exist: (i) the
species is threatened by taking or other human activity, and
identification of critical habitat can be expected to increase the
degree of such threat to the species, or (ii) such designation of
critical habitat would not be beneficial to the species (50 CFR
424.12(a)(1)). Critical habitat is not determinable when one or both of
the following situations exist: (i) information sufficient to perform
required analyses of the impacts of the designation is lacking, or (ii)
the biological needs of the species are not sufficiently well known to
permit identification of an area as critical habitat (50 CFR
424.12(a)(2)).
Once designated, critical habitat has only one regulatory impact:
under section 7(a)(2), Federal agencies must, in consultation with the
Service, insure that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. As discussed below, section 7(a)(2) likewise
prohibits agency actions that are likely to jeopardize the continued
existence of any listed species. Section 7(b)-(d) of the Act and 50 CFR
part 402 describe in detail the process by which agencies consult with
us regarding possible jeopardy to listed species and destruction or
adverse modification of critical habitat. According to our
interpretation of the regulations, by definition, the adverse
modification of critical habitat consultation standard is nearly
identical to the jeopardy consultation standard.
Role of Critical Habitat in Actual Practice of Administering and
Implementing the Act
While attention to and protection of habitat is paramount to
successful conservation actions, we have long believed that, in most
circumstances, the designation of ``official'' critical habitat is of
little additional value for most listed species, yet it consumes large
amounts of conservation resources. Sidle (1987) discussed the practical
role of critical habitat designation and posed the question, ``can the
jeopardy standard alone adequately protect species?'' Several examples
were provided and the conclusion was very clearly stated, ``it is
likely that, for listed species endemic to a small area, critical
habitat is not often necessary.'' Because there are so many varying
opinions, the Service is seeking input on various aspects of critical
habitat.
Currently, critical habitat is linked only to the section 7 process
and is only enforceable when a Federal nexus (such as Clean Water Act
permits, Federal Housing Authority clearances and funding,
Environmental Protection Agency authorities, etc.) sufficient to
trigger a section 7 consultation exists. Many activities carried out on
private, Tribal, State, and Federal lands have Federal involvement, and
would be subject to section 7. However, on private land, where no
Federal involvement exists, a critical habitat designation has no
regulatory impact.
Moreover, we have long believed that separate protection of
critical habitat is duplicative for most species. Section 7 prohibits
Federal agencies from taking actions that jeopardize the continued
existence of a listed species or actions that adversely modify critical
habitat. To jeopardize the continued existence of a species is to
engage in an action that reasonably would be expected, directly or
indirectly, to reduce appreciably the likelihood of both the survival
and recovery of a listed species in the wild by reducing the
reproduction, numbers, or distribution of species. Destruction or
adverse modification is a direct or indirect alteration that
appreciably diminishes the value of critical habitat for both the
survival and recovery of a listed species. For almost all species, the
adverse modification and jeopardy standards are the same., resulting in
critical habitat being an expensive regulatory process that duplicates
the protection already provided by the jeopardy standard. Sidle (1987)
stated, ``Because the ESA can protect species with and without critical
habitat designation, critical habitat designation may be redundant to
the other consultation requirements of section 7.'' Currently, only 113
species or 9% of the 1179 listed species in the U.S. under the
jurisdiction of the Service have designated critical habitat. We
address the habitat needs of all 1179 listed species through the
conservation mechanisms discussed above, such as listing, section 7
consultation, and the recovery planning process. For most species, the
duplication between the jeopardy standard and the adverse modification
standard exists because unoccupied habitat is not involved. When
unoccupied habitat is designated as critical habitat, the duplication
ceases because consultation under section 7 of the Act must then be
completed on an area not previously included in the analysis. The
Service is interested in your opinion; do the unoccupied habitat
aspects of critical habitat designation provide significant
conservation benefit for imperilled species?
Procedural and Resource Difficulties in Designating Critical Habitat
We have been inundated with citizen lawsuits for our failure to
complete the process described above, and we have been challenged on
numerous ``not prudent'' critical habitat determinations (meaning that
the designation of critical habitat was determined to be not prudent
for that species).
We believe that the present system for determining and designating
critical habitat is not working. Many conservation organizations,
affected landowners, and industry groups also recognize that the
present system is not working. Perception of the value and
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purpose of critical habitat varies widely. Many environmental groups
view critical habitat as providing additional regulatory protection,
hence the large number of lawsuits to prompt critical habitat
designations. Some industry groups view critical habitat as the only
way economic impacts are addressed in the conservation of imperilled
species.
The consequence of the critical habitat litigation activity is that
we are utilizing much of our very limited listing program resources in
litigation support defending active lawsuits and Notices of Intent
(NOIs) to sue relative to critical habitat, and complying with the
growing number of adverse court orders. In the meantime, our efforts to
respond to listing petitions, to propose listing of critically
imperilled species, and to make final listing determinations on
existing proposals are being significantly delayed. There are species
not yet listed in Regions or geographic locations where litigation
support has and will continue to consume much of our funding resources.
For example in Hawaii, a single court order remanded 245 ``not
prudent'' critical habitat determinations. There are other species in
Hawaii that are literally facing extinction while precious resources
are being depleted on critical habitat litigation support and the
reexaminations of critical habitat prudency determinations for species
already listed. Litigation over critical habitat issues for species
already listed and receiving the Act's full protection has precluded or
delayed many listing actions nationwide.
Economic analysis done for critical habitat designation can be
expensive, in the past, total costs for such analyses for critical
habitat designations have cost as much as $500,000, against a total
listing budget of a few million dollars. The National Research
Council's research committee ``recognizes that because of public
concern over economic consequences, the designation of critical habitat
is often controversial and arduous, delaying or preventing the
protection it was intended to afford'' (National Research Council
1995).
An additional costly consequence (both in terms of staff time and
funding) of designating critical habitat is where designation triggers
compliance with the National Environmental Policy Act (NEPA). The
circuit courts are split on the issue of whether critical habitat
designation triggers NEPA. Within the jurisdiction of the Court of
Appeals for the Tenth Circuit (the states of NM, CO, NE, UT, WY, OK,
and KS) NEPA is required ( see Catron County Board of Commissioners v.
USFWS, 75 F.3d 1429 (10th Cir. 1996)). The Ninth Circuit does not view
the designation of critical habitat as a major Federal action under
NEPA (Douglas County v. Babbitt, 48 F 3d 1495, 1507-08, (9th Cir.
1995), cert. denied).
Our Current Policy on Setting Priorities to Maximize Conservation
Benefit
Because we do not have unlimited resources, we believe we must set
priorities in order to use our funds in the manner most beneficial to
imperilled species. In the past we have established priorities for the
use of funds through our Listing Priority Guidance (LPG). The FY 1998-
1999 Listing Priority Guidance consists of three tiers or categories of
listing activities. Emergency listing actions are the highest priority
(Tier 1); followed by Tier 2, which comprises final rules, proposed
rules, and petition findings; and critical habitat actions constitute
Tier 3. This system and its predecessor LPGs have allowed us to manage
our listing program for maximum conservation benefit following the FY
1995-1996 moratorium and funding rescission that created large
backlogs. When the moratorium was lifted on April 26, 1996, 243
proposed species awaited final determinations. Currently, there are
only two proposed species that were included in that very large
backlog. Our own system for prioritizing listing actions has enabled us
to provide the full protection of the Act to more than 250 species
since April 26, 1996. This was possible by foregoing low priority
listing actions such as critical habitat designations. Now however, we
are being faced with numerous court orders that require us to complete
critical habitat designations and reconsider not prudent findings for
listed species.
Because of our reducing the listing backlogs, the LPG is evolving.
The proposed FY 1999/2000 LPG was published in the Federal Register on
May 20, 1999. That guidance no longer prioritizes critical habitat
actions with other section 4 actions. Critical habitat actions are
funded separately (funding still is allocated through the listing
subactivity), and critical habitat actions will be prioritized on an
annual basis. For example, in FY 1999, 17% of the listing subactivity
funds were allocated for critical habitat actions. Court ordered
critical habitat actions and Regional priorities received funding for
FY 1999 activity. The LPG will continue to evolve as we continue to
balance our national listing program.
Proposals for Public Comment
The Service intends to reexamine our existing approach to
designation of critical habitat. The legal debate over critical habitat
prudency determinations involves two key areas of the ``no net
benefit'' argument to attain a not prudent critical habitat
determination--(a) the contention that the adverse modification
standard for the same species with designated critical habitat is
equivalent to the jeopardy standard for species without designated
critical habitat; and (b) the treatment of unoccupied habitat in
prudency determinations. We particularly solicit comments relative to
when the designation of critical habitat will provide additional
benefit (beyond that of listing) and what considerations should be
included in our prudency determinations.
In order to reduce the costs of accomplishing critical habitat
actions, we are considering developing a new streamlined and cost-
effective process for critical habitat determinations and designation.
As mentioned previously in this notice, the current designation process
is inefficient, and should be redesigned to be more cost-effective and
in line with the amount of conservation benefit provided to the
species. Under the current process designating critical habitat for
multiple species could devastate the listing program, and result in
scarce funds being spent on activities that have a lower benefit to
species relative to other activities .
We believe that describing the areas proposed for designation as
critical habitat needs to be a much less labor intensive process. We
suggest that suitable habitat is best described in broader terms. We
encourage views on whether pinpointing small areas of species
occurrence and drawing precise small circles around habitat on maps is
the methodology we should be employing to identify and describe
critical habitat, or whether instead more general habitat location
delineations and broad descriptions of habitat types are the most
efficient descriptors to be used in the designation of critical
habitat. Very specific lines drawn on a map may not be the most
efficient way to identify areas that may be important in the recovery
of rare species. We would encourage commentators to discuss better ways
to describe habitat and species occurrence. We would suggest that
commentators consider how a more descriptive approach might be
employed, rather than a map-based approach. Descriptions might be
linked to habitat types, elevation, and riparian areas, for example. We
would also be interested in comments relating to how the Service could,
at the stage of developing a recovery plan, when much more may be known
about the needs of
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the species than at the time of critical habitat designation, be more
specific about the extent of habitat protection necessary for recovery.
We also intend to redesign other aspects of the process for
designating critical habitat. We encourage comments on how economic
analyses can evolve into a streamlined and cost-effective process. We
also solicit comments on how NEPA compliance, when required, may be
conducted in a simple and efficient manner. Completing programmatic
assessments and analyses, for example, may be an efficiency mechanism.
Perhaps multispecies/geographic species groupings to reduce and
eliminate administrative redundancy should be more common. We request
comments and suggestions relative to how we can effectively streamline
the process and specifically whether and how our existing regulations
might or should be changed to accomplish this. We also request comments
and suggestions on possible legislative corrections that might improve
the effectiveness and efficiency of the critical habitat process.
Public Comments Solicited
We intend that any actions resulting from this notice and
subsequent proposed guidance be as accurate and as effective as
possible. Therefore, we solicit any suggestions from the public,
concerned governmental agencies, the scientific community,
environmental groups, industry, commercial trade entities, or any other
interested party concerning any aspect of this notice. We will take
into consideration any comments and additional information received and
will announce proposed guidance after the close of the public comment
period and as promptly as possible after all comments have been
reviewed and analyzed. We will make available for your review and
comment any critical habitat guidance, policy, or regulatory changes
that are developed.
Executive Order 12866 requires each agency to write regulations/
notices that are easy to understand. We invite your comments on how to
make this notice easier to understand including answers to questions
such as the following: (1) Are the requirements in the notice clearly
stated? (2) Does the notice contain technical language or jargon that
interferes with the clarity? (3) Does the format of the notice
(grouping and order of sections, use of headings, paragraphing, etc.)
aid or reduce its clarity? (4) Is the description of the notice in the
``Supplementary Information'' section of the preamble helpful in
understanding the notice? What else could we do to make the notice
easier to understand?
References Cited
National Research Council. 1995. Science and the Endangered Species
Act. National Academy Press, Washington, D.C. 271 pp.
Sidle, J.G. 1987. Critical Habitat Designation: Is it Prudent?
Environmental Management 11(4):429-437.
Authority: The authority for this notice is the Endangered
Species Act of 1973, as amended, 16 U.S.C. 1531 et seq.
Dated: May 3, 1999.
Jamie Rappaport Clark,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 99-15080 Filed 6-11-99; 8:45 am]
BILLING CODE 4310-55-M